How to protect intellectual property

In the emerging technological age, one of the most important assets that a business owns is its intellectual property (“IP”). IP encompasses all intangible assets including inventions, patents, trademarks, domains, designs, copyrighted materials, brands and secret processes and formulae. For most businesses, the value of their intellectual property rights will typically be of higher value than their tangible assets. This is why it is vital that businesses have the right documentation, agreements and policies and procedures in place to protect these rights. Keep reading this Legal Kitz blog to find out more about intellectual property.

Who owns IP rights?

You own intellectual property if you have either created it (and it meets the relevant requirements for a registered right) or you have bought it from the creator or previous owner. Typically, employees do not own the IP for assets that have been created in the process of their employment. It is crucial to understand which IP rights require formal registration before your business can claim a right to ownership.

Do I need a patent?

A patent offers formal protection for a device, substance, method or process. If you wish to have a legal right to stop third parties from manufacturing, using and/or selling an invention, you may wish to consider applying for an Australian patent. For your application to be successful, your invention must be new (and not disclosed to a member of the public), useful and inventive or innovative. Businesses with the relevant patent protection are also more easily able to license the manufacturing of the invention to a manufacturer.

The type of patent you hold will determine the duration of your protection. A standard patent lasts for up to 20 years, whereas an innovation patent only lasts for up to eight years and a pharmaceutical patent can last up to 25 years.

If you are considering applying for a patent, we recommend that you seek professional assistance.

Do I need a trademark?

If you register a business, company or domain name, you do not automatically have the right to use that name as a trademark. A trademark is your brand and can consist of a:

  • word (in a plain font or a ‘fancy’ font);
  • phrase;
  • letter;
  • number;
  • logo;
  • picture;
  • aspect of packaging; or
  • combination of the above.

If you wish to have exclusive use of your business, company or domain name, you should applying for a trademark. Registered trademarks last for 10 years and can be renewed. However, if you don’t use the trademark, it can be removed.

How to register for a domain name?

A domain name is a unique internet site address that allows clients and customers to access your business’ website. To register for a domain, the domain name must be available and your business must meet the .au Domain Administration’s policy on domain name eligibility and allocation.

For more information on registering a domain name, see the .au Domain Administration’s website on https://www.auda.org.au/.

Can I apply for a design right?

A design is what makes a product look the way it does. It includes a:

  • shape;
  • configuration;
  • pattern; or
  • ornamentation.

A design right is a type of IP to protect designs. It is registered under the Designs Act 2003. Registering a design gives you as the owner exclusive rights to commercially use, licence or sell the design. A design application can be filed containing one design, a single design for several products or multiple designs.

Will I be eligible for copyright protection?

The moment an idea or creative concept is documented on paper or electronically it is automatically protected by copyright laws in Australia. Therefore, your website is copyrighted at the time of development. A copyright notice with the owner’s name and date is not necessary in Australia, but it can help prove your ownership of the copyright. Using a copyright notice can also act as a deterrent to potential infringers.

Legal advice

If you require legal advice regarding protecting your business’ IP or have any questions about our products or services, please do not hesitate to Legal Kitz by phone (1300 988 954) or by email (info@legalkitz.com.au).

The above information has been collected from relevant government websites and is subject to change. For the latest information regarding new or amended legislation, please refer to state and federal government websites.

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